1. A homestead allotment of a half-blood Creek Indian, who died
intestate leaving surviving issue, a member of the tribe, born
since March 4, 1906, remains inalienable under § 9 of the Act of
May 27, 1908, c.199, 35 Stat. 312, during the lifetime of such
issue, until April 26, 1931, if the Secretary of the Interior has
not removed the restriction, and a deed made by the heirs in such
circumstances is void. P. 256 U. S.
2. A finding that a surviving son of a Creek allottee was born
since March 4, 1906, held
sustained by the evidence. P.
256 U. S.
3. In a suit to set aside deeds of an Indian allotment made by
the heirs of the allottee in contravention of a restriction on
alienation imposed by Congress, wherein the validity of the
conveyances depended on the date of the birth of a surviving minor
son of the allottee, held
that the United States was in no
respect concluded by a finding of the date and a judgment upholding
the conveyances, in a prior suit in the state court between the
heirs and one claiming under the conveyances, to which suit the
United States was not a party. P. 256 U. S. 203
261 F. 351, affirmed.
THE case is stated in the opinion.
Page 256 U. S. 202
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
The United States brought this suit to cancel conveyances made
by the heirs of a Creek Indian of land allotted to him as a
homestead out of the Creek tribal lands. After answer and hearing,
the district court granted the relief sought, and the circuit court
of appeals affirmed the decree. 261 F. 351.
The allottee was an Indian of the half blood, and died intestate
in 1911, leaving as his heirs a widow, an adult daughter, and a
minor son, all of whom were Creek Indians. Thereafter, deeds
purporting to convey the land to one Privett were executed by the
heirs, the deed of the minor son being made by his guardian. These
are the conveyances sought to be cancelled, and the ground on which
they are assailed is that the minor son was born after March 4,
1906, and therefore that the land passed to the heirs subject to
the qualification and restriction imposed by a proviso in § 9 of
the Act of May 27, 1908, c.199, 35 Stat. 312, which declares:
"That if any member of the Five Civilized Tribes of one-half or
more Indian blood shall die leaving issue surviving, born since
March fourth, nineteen hundred and six, the homestead of such
deceased allottee shall remain inalienable unless restrictions
against alienation are removed therefrom by the Secretary of the
Interior in the manner provided in section one hereof, for the use
and support of such issue, during their life or lives, until
Page 256 U. S. 203
April twenty-six, nineteen hundred and thirty-one; but if no
such issue survive, then such allottee, if an adult, may dispose of
his homestead by will free from all restrictions; if this be not
done, or in the event the issue hereinbefore provided for die
before April twenty-six, nineteen hundred and thirty-one, the land
shall then descend to the heirs,"
The minor son is still living, and, if he was born after March
4, 1906, it is conceded that the heirs took the land subject to the
qualification and restriction imposed by the proviso (see
Parker v. Riley, 250 U. S. 66
there was no removal of the restriction by the Secretary of the
Interior, and that the conveyances made by the heirs are void. But
it is urged first that the evidence produced at the hearing shows
that the minor son was born before, and not after, March 4, 1906,
and secondly that, in any event, it was settled conclusively in a
prior suit that he was born February 23, 1906.
The district court found that the date of the son's birth was
April 23, 1906, and the circuit court of appeals acquiesced in that
finding without particularly discussing the point in its opinion.
The evidence has been examined, and in our opinion it amply
supports the finding.
The reliance on the decision in the prior suit is ill founded.
That suit was between the heirs and one who was claiming under
these conveyances, the United States not being a party, and the
decree therein pronounced the conveyances valid. This suit is
brought by the United States in virtue of its interest in
maintaining the restriction and safeguarding the Indians in the
possession and enjoyment of the lands allotted out of the tribal
domain. As yet, the Indians have not been fully discharged from the
guardianship of the United States.
"During the continuance of this guardianship, the right and duty
of the nation to enforce by all appropriate means the restrictions
designed for the security of the Indians cannot
Page 256 U. S. 204
be gainsaid. While relating to the welfare of the Indians, the
maintenance of the limitations which Congress has prescribed as a
part of its plan of distribution is distinctly an interest of the
Heckman v. United States, 224 U.
, 224 U. S. 437
See also La Motte v. United States, 254 U.
"And it is no longer open to question that the United States has
capacity to sue for the purpose of setting aside conveyances of
lands allotted to Indians under its care where restrictions upon
alienation have been transgressed. . . . Authority to enforce
restrictions of this character is the necessary complement of the
power to impose them. It necessarily follows that, as a transfer of
the allotted lands contrary to the inhibition of Congress would be
a violation of the governmental rights of the United States arising
from its obligation to a dependent people, no stipulations,
contracts, or judgments rendered in suits to which the government
is a stranger can affect its interest."
Bowling v. United States, 233 U.
, 233 U. S.
-535. As the United States is here suing in its own
interest, it is in no wise concluded by any matter, whether of fact
or law, that may have been adjudged in the prior suit to which it
was not a party.